IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100008884 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the removal of the following from his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 February 2006 through 31 January 2007:

	a.  Part IIIf (Counseling Dates) - 15 June 2006, 12 October 2006, and 7 December 2006, and

	b.  Part V (Overall Performance and Potential) - rater and senior rater ratings and bullet comments.

2.  The applicant states the NCOER [hereafter referred to as the contested report], dated 7 May 2007, is not the original NCOER he signed on 1 March 2007.  He contends the original NCOER contained rater and senior rater comments of "Among the Best" with "Successful 1/Superior 1" with strong supporting bullet comments.  The bullet comments were changed after a disagreement with the reviewer.

3.  He also contends he was counseled once on 21 February 2006.  He alleges someone added the other counseling dates shown on the contested report without his knowledge and after he signed, making the dates erroneous.

4.  The applicant makes reference to a DA Form 2823 (Sworn Statement) submitted by his rater.  He states the rater clearly admits to informally counseling him three times.  He points out that this is not in accordance with Army Regulation 623-3 (Evaluation Reporting System) effective 15 June 2006.

5.  The applicant also makes reference to a negative counseling statement, dated 15 March 2007.  He states the counseling was given as a result of a misunderstanding from a phone conversation with his reviewer.  There was neither any proof of repeated patterns of misconduct nor was there any type of investigation as stated in the counseling.  He adds that at the time of the incidents, a new rating period was in place and therefore the incidents cannot be used in a previous rating period as outlined in Army Regulation 623-3.  In addition, he was in school at the time of the alleged incidents.  He is also unsure why the Army Special Review Board (ASRB) made mention of the NCOER's which were rendered after the contested report.

6.  The applicant provides copies of the following:

* three different versions of the contested report
* a self-authored memorandum for record (MFR), dated 7 March 2007
* a DA Form 4856 (Developmental Counseling Form), dated 15 March 2007
* three separate DA Forms 2823
* a memorandum, Inspector General, Department of Defense, dated 14 January 2009
* a memorandum, High Tech Regional Training Site - Maintenance, dated 29 January 2010
* the ASRB Record of Proceedings Docket Number AR20080017021, dated 17 March 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the U.S. Army Reserve on 18 August 2000.  He currently holds the rank of staff sergeant and is serving on active duty in the Active Guard Reserve.

2.  A copy of the contested report shows he was rated by the first sergeant (1SG); senior rated by the company commander, Captain (CPT) W____; and reviewed by a major (MAJ).  The rating officials and the applicant all signed the first report on 1 March 2007.  The first version of the contested report shows he was counseled on 21 February 2006 in Part IlIf.  No other counseling dates are present.  He was rated "Among the Best" and "Successful 1/Superior 1" in Part Va and Part Vc with senior rater comments of "true professional; totally dedicated to mission, unit, and the Army"; "consistently demonstrates the potential for increased responsibility"; and "unlimited leadership potential; send to BNCOC immediately."

3.  The second version of the contested report shows all the rating officials signed the report on 7 May 2007 with the applicant signing on 8 May 2007.  In this version of the contested report, Part IlIf shows the applicant was initially counseled on 21 February 2006 and later on 15 June 2006, 12 October 2006, and 7 December 2006.  Part Va and Part Vc show the rater placed an "X" in the block for "Fully Capable."  The senior rater placed an "X" in the blocks for "Successful 3/Superior 3" and provided the bullet comments of "consistently accomplishes many tasks with little supervision," "shows continued growth within his MOS," and "has accepted leadership responsibilities as a squad leader."

4.  The third version of the contested report contains only the initial counseling date of 21 February 2006 in Part IIIf.  Part Va and Part Vc contain the same ratings and comments as the second version of the contested report and the same dates for the signatures.

5.  The applicant provides a copy of a self-authored MFR in which he comments on a phone conversation he had with his senior rater on 7 March 2007.  He notes he was in training at the time.  In this MFR, the applicant makes reference to being handed a written message from one of the NCO's at the training center in which his reviewer directed him to order parts by close of business that day (7 March 2007).  He states he called one of the NCO's back at his unit to get clarification as to why there was confusion surrounding the parts.  The NCO stated that he was given a direct order from the applicant's reviewer not to discuss the parts matter with him.  He contends that it did not make sense because the NCO was the acting 1SG at the time; however, the NCO held his position not to discuss the matter with him.

6.  The applicant states his reviewer (MAJ A____) got on the telephone and asked him what the problem was.  He explained that he was in school, that he did not think that it was right being interrupted while attending classes, and that he had already sent a request.  He claims MAJ A____ then gave him a direct order over the telephone not to discuss parts or supply matters with the acting 1SG.  He tried to question her as to why, but states she kept interrupting him.  He states he then politely asked MAJ A____ if he may speak and finish his sentence, and she answered, "No, you cannot finish your sentence."  He was given the order again not to discuss the parts matter and to order the parts before midnight on 7 March 2007.  He states he complied with her orders and they settled the matter.

7.  The applicant provides a copy of a counseling statement, dated 15 March 2007.  In the counseling statement, CPT W____ advised him that his performance, integrity, and military discipline were not up to standard or to the expectations of the command.  He also stated that the applicant had repeatedly shown a pattern of disrespect toward the officers in authority, he ignored directives and orders given to him, and looked to other officers to contradict orders with which he did not feel like complying.  He misrepresented facts when asked direct questions by his supervisors; he lacked attention to detail and his unwillingness to place the Army mission before his needs severely impacted the unit's ability to perform its annual training mission.

8.  CPT W____ also contended that the applicant's actions, behavior, and attitude created an adversarial environment in the unit, caused misunderstanding and conflict regarding its readiness, and wasted countless hours of valuable supervisory time while officers tried to compensate for and resolve unnecessary issues raised by the applicant's behavior.  CPT W____ went on to advise the applicant that his actions indicated a pattern of unsatisfactory behavior and could lead to his involuntary separation from the U.S. Army Reserve.

9.  The applicant disagreed with the counseling statement and provided the following comment:  "This is another example of unjustified double standards.  I always do the best I can with every mission and always treat people with respect."  The applicant and CPT W____ signed the counseling statement.

10.  The applicant provides copies of three different sworn statements from people who had direct knowledge of the chain of events surrounding the contested report:

	a.  The sworn statement from 1SG L____, dated 21 May 2008, provides that he signed the applicant's NCOER "in approximately March of 2007" and passed it on to the NCOER staff for finalization.  "In approximately April of 2007," Sergeant (SGT) B____ of the NCOER staff came to him with a corrected NCOER.  He recalls signing a total of three copies of the contested report which covered the same rating period.  He also recalls only doing one formal counseling session in February 2006.  He states there were several other informal sessions.

	b.  In the sworn statement from SGT B____, she states from April through August (no year) she worked on orders in the unit.  During that time she was directed to take a document to the applicant's rater to get his signature.  She later found out that the document was the applicant's contested report.  She was directed once again to take another document back to the rater for signature.

	c.  A copy of the sworn statement from Sergeant First Class (SFC) H____, states that during the first week of March 2007 while in Utah, CPT W____ made contact with him.  CPT W____ directed him to contact the battalion and have a recently submitted NCOER on the applicant withdrawn.  He contends that CPT W____ explained that it had to do with a recent episode with the applicant and the command's frustration with the applicant's behavior.  SFC H____ also contends he told the unit commander it was illegal to withdraw an already-submitted NCOER (i.e., all signatures affixed) and that the episode happened after the period covered in the NCOER.  The unit commander indicated that SFC H____'s opinion was duly noted, but he still wanted his instructions followed.  SFC H____ contacted the battalion S-1 and had the contested report withdrawn.

11.  In June 2004, the applicant appealed the contested report to the U.S. Army Human Resources Command, St. Louis, Missouri.  The report was forwarded to the ASRB for processing.  The applicant's appeal was based on his belief that the report contained substantive inaccuracies and he requested that the report be deleted.

12.  The ASRB concluded that after a comprehensive review of the evidence in the applicant's official record and his contentions and arguments, the evidence submitted in support of his application failed to show by clear and convincing evidence that his NCOER contained a material error, inaccuracy, or injustice.  The applicant contends that the NCOER was illegally pulled from the battalion S-1 prior to submission to Headquarters, Department of the Army (HQDA).  There is no regulatory guidance which prohibits changing an NCOER prior to forwarding to HQDA for inclusion in the OMPF.  The special requirements for changing an NCOER only attach once the NCOER has been forwarded to HQDA.

13.  The ASRB also noted that the applicant failed to provide any evidence to support his contention that he did not receive counseling on the dates specified in Part IlIf of his NCOER.  Although it appears the three later dates of counseling may have been added to the NCOER at a later date, this administrative change did not prejudice the appellant nor does it render the NCOER invalid.  Also, the applicant's contention that he was counseled after the end of the rating period and that it cannot be used in the contested NCOER is without merit.

14.  After the ASRB read the counseling statement, they concluded the applicant was counseled for a repeated pattern of disrespect toward the officers in authority, ignored directives and orders given to him, and looked to other officers to contradict orders with which he did not feel like complying.  These infractions of discipline may have occurred during the rating period and because they were repetitive in nature, eventually culminated in a formal counseling statement after the end of his rating period.  The ASRB found no material error, inaccuracy, or injustice pertaining to the contested report and no basis to grant his request.

15.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports.  In pertinent part, this includes the DA Form 2166-8.  Paragraph 3-39 states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

16.  Paragraph 3-20a of Army Regulation 623-3 states that each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not remark on performance or incidents occurring before or after the period covered.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession or finding of guilt, or the completion of an investigation.

17.  Paragraph 6-11 of Army Regulation 623-3 states that for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources.  Statements from rating officials are acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to the inaccuracies, misrepresentations, or injustice at the time the report was rendered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of three counseling dates from Part IIIf and removal of all ratings and comments from Part V of the contested report.  His contentions were carefully considered and found to be supported by the evidence provided.

2.  Regulatory guidance states that each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not remark on performance or incidents occurring before or after the period covered.  Although the report does not actually contain comments pertaining to the incident(s) which took place in March 2007, there appears to have been a deliberate intent to change the applicant's NCOER based on these circumstances.

3.  While the ASRB noted that some of the infractions of indiscipline may have occurred during the rating period and that these infractions appeared to be repetitive in nature, it does not negate the fact that the changes to the contested report appeared to have taken place after the formal counseling was rendered by CPT W____.  The sworn statement from SFC H____ corroborates the applicant's contentions that the contested report was retracted from the battalion S-1 after all parties had signed the report.  SFC H____ stated that when CPT W____ contacted him to withdraw the recently submitted report, he said the reason was due to recent events and the command's frustration with the applicant.  When SFC H____ told CPT W____ of the mitigating circumstances behind doing something like that, he contends he was told to follow orders.

4.  The sworn statement from 1SG L____ concludes that he recalls signing a total of three different versions of the contested report between the months of March and May 2007.  He also stated he conducted only one formal counseling session in February 2006.  These comments are supported by the evidence submitted in which the applicant provides three versions of the contested report which show the report was authenticated on three different dates, that three additional counseling dates were added after the fact, and that the ratings and comments in Part V were changed.

5.  Army Regulation 623-3 states that in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  It also states clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

6.  From the evidence submitted, it appears the applicant took the necessary steps to appeal the contested report and thus exhausted his administrative remedies.  Therefore, it would be equitable to grant the requested relief.

BOARD VOTE:

___x____  __x_____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 February 2006 through 31 January 2007 to reflect the following:

	a.  Part IlIf (Counseling Dates) - delete 15 June 2006, 12 October 2006, and 7 December 2006;

	b.  Part Va - delete the "X" in the block "Fully Capable" and replace it with an "X" in the block "Among the Best";

	c.  Part Vc - delete the "X" in the block "Successful 3" and replace it with an "X" in "Successful 1";

	d.  Part Vd - delete the "X" in the block "Superior 3" and replace it with an "X" in "Superior 1";

	e.  Part Ve - delete bullet comments:

* "consistently accomplishes many tasks with little supervision"
* "shows continued growth within his MOS"
* "has accepted leadership responsibilities as a squad leader"

	f.  Part Ve - add bullet comments:

* "true professional; totally dedicated to mission, unit, and the Army"
* "consistently demonstrates the potential for increased responsibility"
* "unlimited leadership potential; send to BNCOC immediately"



      ___________x________
       	     CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100008884



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ABCMR Record of Proceedings (cont)                                         AR20100008884



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